Yorktown ISD

 

062904

 

SPECIAL EDUCATION STUDENTS:

EHBAD

PROCEDURAL REQUIREMENTS

(LEGAL)

 

 

The District shall establish and maintain procedures designed to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education. These procedures shall include:

OPPORTUNITIES FOR PARENTS

1.      An opportunity for the parents of a child with a disability:

a.      To examine all records relating to the child;

b.      To participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to the child, and

c.      To obtain an independent educational evaluation of the child.

34 CFR 300.501, 300.502

ADULT STUDENTS

2.      Notification of the student and the parents of the transfer of rights, in accordance with 34 CFR 300.517. A student with a disability who is 18 years of age or older or whose disabilities of minority have been removed for general purposes under Chapter 31, Family Code, shall have the same right to make educational decisions as a student without a disability, except that the District shall provide any notice required by Chapter 29, Subchapter A of the Education Code or 20 U.S.C. 1415 to both the student and the parents. All other rights accorded to parents under Chapter 29, Subchapter A of the Education Code or 20 U.S.C. 1415 transfer to the student. Education Code 29.017

In accordance with 34 CFR 300.347(c) and 300.517 and Education Code 29.017, beginning at least one year before a student reaches 18 years of age, the student's IEP must include a statement that the student has been informed that, unless the student's parent or other individual has been granted guardianship of the student under the Probate Code, Chapter Xlll, all rights granted to the parent under the IDEA, Part B, other than the right to receive any notice required under IDEA, Part B, will transfer to the student upon reaching age 18. After the student reaches the age of 18, except as provided below (incarcerated students), the District shall provide any notice required under IDEA, Part B, to both the adult student and the parent.

In accordance with 34 CFR 300.517(a)(2) and Education Code 29.017, all rights accorded to a parent under IDEA, Part B, including the right to receive any notice required by IDEA, Part B, will transfer to an 18-year-old student who is incarcerated in an adult or juvenile, state or local correctional institution, unless the student's parent or other individual has been granted guardianship of the student under the Probate Code, Chapter XIII.

In accordance with 34 CFR 3000.517(a)(3), the District must notify in writing the adult student and parent of the transfer of parental rights at the time the student reaches the age of 18. This notification is separate and distinct from the requirement that the student's IEP include a statement relating to the transfer of parental rights beginning at least one year before the student reaches the age of 18. This notification is not required to contain the elements of notice referenced in 34 CFR 300.503, but must include a statement that parental rights have transferred to the adult student and provide contact information for the parties to use in obtaining additional information.

A notice under IDEA, Part B, that is required to be given to an adult student and parent does not create a right for the parent to consent to or participate in the proposal or refusal to which the notice relates. For example, a notice of an ARD committee meeting does not constitute invitation to, or create a right for, the parent to attend the meeting. However, in accordance with 34 CFR 300.344(a)(6), the adult student or the District may invite individuals who have knowledge or special expertise regarding the student, including the parent.

Nothing in 19 TAG 89.1049 prohibits a valid power of attorney from being executed by an individual who holds rights under IDEA, Part B.

19 TAC 89.1049

SURROGATE PARENT

3.      Procedures to protect the rights of the child whenever the parents of the child cannot be identified, the District cannot locate the parents after reasonable efforts to do so, or the child is a ward of the state. These procedures shall include assigning an individual to act as a surrogate for the parents. This individual shall not be an employee of TEA, the District, or any other agency that is involved in the education or care of the child. in addition, the individual chosen to act as a surrogate parent should have no interest that conflicts with the interest of the child he or she represents and should have knowledge and skills that ensure adequate representation of the child. 34 CFR 300.515

TRAINING

An individual assigned to act as a surrogate parent must complete a training program in which the individual is provided with an explanation of the provisions of federal and state laws, rules, and regulations relating to:

a.          The identification of a student with a disability;

b.          The collection of evaluation and re-evaluation data relating to a student with a disability;

c.          The admission, review, and dismissal (ARD) committee process;

d.          The development of an individualized education program (IEP) and, for a student who is at least 16 years of age, an individual transition plan (ITP);

e.          The determination of least restrictive environment;

f.            The implementation of an IEP;

g.          The procedural rights and safeguards available under 34 CFR 300.403, 300.500-300.529, 300.560-300.577, and 300.660-300.662, relating to the issues described in 34 CFR 300.504(b); and

h.          The sources that the surrogate parent may contact to obtain assistance in understanding the provisions of federal and state laws, rules, and regulations relating to students with disabilities.

The training program must be provided in the native language or other mode of communication used by the individual who is to serve as a surrogate parent.

The individual assigned to act as a surrogate parent must complete the training program within 90 calendar days after March    6, 2001, or the date of initial assignment as a surrogate parent, whichever comes later. Once an individual has completed a training program conducted or provided by or through the Texas Department of Protective and Regulatory Services (PRS), a school district, an education service center, or any entity that receives federal funds to provide IDEA training to parents, the individual all not be required by any school district to complete additional training in order to continue serving as the student's surrogate parent or to serve as the surrogate parent for other students with disabilities. School districts may provide ongoing or additional training to surrogate parents and/or parents; however, the District cannot deny an individual who has received the training from serving as a surrogate parent on the grounds that the individual has not been trained

The District shall provide, or arrange for the provision of, the training program within 90 calendar days after March 6, 2001, for individuals serving as surrogate parents as of March 6, 2001. Thereafter, the District should provide or arrange for the provision of the training program prior to assigning an individual to act as a surrogate parent but no later than 90 calendar days after assignment.

19 TAC 89.1047(a)

FOSTER PARENT AS SURROGATE

4.      Preferential consideration to a foster parent of a child with a disability when assigning a surrogate-parent for the child. A foster parent may act as a parent of a child with a disability if:

a.          The Texas Department of Protective and Regulatory Services (PRS) is appointed as the temporary or permanent managing conservator of the child;

b.          The child has been placed with the foster parent for at least 60 days;

c.          The foster parent agrees to:

                            i.                Participate in making educational decisions on the child's behalf; and

                          ii.                Complete a training program for surrogate parents that complies with minimum standards established by TEA rule.

d.          The foster parent has no interest that conflicts with the child's interests.

A foster parent who is denied the right to act as a surrogate parent or a parent by the District may file a complaint with TEA in accordance with federal law and regulations.

TRAINING

 

A foster parent may act as a parent of a child with a disability if he or she complies with the requirements of Education Code 29.015(b), including the completion of the training program described under SURROGATE PARENT above.

CONFLICT OF INTEREST

5.      Procedures for conducting an analysis of whether a foster parent or potential surrogate parent has an interest that conflicts with the interests of his or her child. A foster parent in a home which is verified by the PRS or a child-placing agency shall not be deemed to have a financial conflict of interest by virtue of serving as the foster parent in that home. These homes include, but are not limited to, basic, habilitative, primary medical, or therapeutic foster or foster group homes. In addition, issues concerning quality of care of the child do not constitute a conflict of interest. Concerns regarding quality of care of the child should be communicated, and may be statutorily required to be reported, to PRS.

If the District denies a foster parent the right to serve as a surrogate parent or parent, the District must provide the foster parent with written notice of such denial within seven calendar days after the date on which the decision is made The written notice shall:

Specify the reason(s) the foster parent is being denied the right to serve as the surrogate parent or parent (the notice must specifically explain the interests of the foster parent that conflict with the interests of his or her child); and

  1.  

b.      Inform the foster parent of his or her right to file a complaint with TEA in accordance with its complaint procedures.

Education Code 29.015; 19 TAC 89.1047(b), (c), (d)

PRIOR WRITTEN NOTICE

6.      Prior written notice to the parents of the child whenever the District proposes to initiate or change or refuses to initiate or change the identification, evaluation, or educational placement of the child, or the free appropriate public education of the child. The written notice to parents shall be provided at least five school days before the proposed action is taken, unless the parents agree otherwise. 34 CFR 300.503(a); 19 TAC 89.1015

The notice to parents must be written in language understandable to the general public and provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. The notice must include:

CONTENTS

 

    1. A description of the action proposed or refused by the District, an explanation of why the District proposes or refuses to take the action, and a description of any options the District considered and the reasons why those options were rejected;
    2. A description of each evaluation procedure, test, record, or report the District uses as a basis for the proposal or refusal;
    3. A description of any factors that are relevant to the District's proposal or refusal;
    4. Sources for parents to contact to obtain assistance in understanding the provisions of the IDEA; and
    5. A statement that the parents of a child with a disability have protection under the procedural safeguards of IDEA and, if the notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained.

34 CFR 300.503(b)

 

  1. An opportunity for mediation [see MEDIATION PROCESS, below]. 34 CFR 300.506

COMPLAINT
PROCEDURE

8.      An opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child.

9.      Procedures that require the parent of a child with a disability, or the attorney representing the child, to provide notice (which shall remain confidential) in a complaint that includes:

a.      The name and address of the child, and the name of the school the child attends;

b.      A description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to the problem; and

c.      A proposed resolution of the problem to the extent known and available to the parents at the time.

20 U.S.C. 1415(a)–(c)

PROCEDURAL SAFEGUARDS NOTICE

The District shall provide a copy of the procedural safeguards available to parents:

1.      Upon initial referral for evaluation;

2.      Upon each notification of an ARD committee meeting and upon reevaluation of the child; and

3.      Upon receiving a request for a due process hearing.

CONTENTS

The procedural safeguards notice shall include a full explanation of the procedural safeguards, written in the native language of the parents, unless it clearly is not feasible to do so, and written in an easily understandable manner. The notice shall include information relating to:

1.      Independent educational evaluation;

2.      Prior written notice;

3.      Parental consent;

4.      Access to educational records;

5.      Opportunity to present complaints to initiate due process hearings;

6.      The child's placement during pendency of due process proceedings;

7.      Procedures for students who are subject to placement in an interim alternative educational setting;

8.      Requirements for unilateral placement by parents of children in private schools at public expense;

9.      Mediation;

10. Due process hearings, including requirements for disclosure of evaluation results and recommendations;

11. Civil actions;

12. Attorneys' fees; and

13. State complaint procedures, including how to file such a complaint.

20 U.S.C. 1415(d); 34 CFR 300.504

MEDIATION PROCESS

The District shall ensure that procedures are established and implemented to allow parties to disputes arising from parental complaints relating to the identification, evaluation, placement or provision of a free appropriate public education to the child, to resolve those disputes through a mediation process which, at a minimum, shall be available whenever a parent requests an impartial due process hearing or a hearing concerning a child's placement in an alternative educational setting. [See FOE]

Mediation procedures shall ensure that the process:

1.      Is voluntary on the part of the parties;

2.      Is not used to deny or delay a parent's right to a due process hearing or to deny any other rights afforded under the Individuals with Disabilities Education Act; and

3.      Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

WHEN NO MEDIATION PROCESS IS USED

The District may establish procedures to require parents who choose not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with a parent training and information center or community parent resource center, or an appropriate alternative dispute resolution entity. The impartial party would encourage the use, and explain the benefits, of the mediation process to parents.

20 U.S.C. 1415(e); 34 CFR 300.506

`STAY PUT' 

During the pendency of any administrative or judicial proceeding regarding a complaint about the District's obligations to the student under federal and state special education laws, unless the District and the parent agree otherwise, the student involved in the complaint shall remain in the then-current educational placement, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all proceedings have been completed.

EXCEPTION

When a parent requests a hearing regarding a disciplinary action to challenge the child's placement in an interim alternative educational setting or the manifestation determination regarding a removal for weapons or drugs or a removal ordered by a hearing officer [see FOE], the student shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the term of placement, which may be for not more than 45 calendar days, in the alternative setting has expired, whichever occurs first, unless the parent and the District agree otherwise.

20 U.S.C. 1415 (j), (k)(7); 34 CFR 300.514, 300.526

 

DATE ISSUED: 12/02/2002

 

 

UPDATE 69

 

 

EHBAD (LEGAL)—P